Branches boundaries and the law when your neighbour’s tree becomes your problem

Imagine this scenario. You live in a sectional title complex and you notice that your neighbour’s bougainvillaea tree planted at the entrance gate right in front of your driveway, has branches which overhangs onto your side of the property and is not only a nuisance but the branches of the tree scratches your car every time you enter or leave your home. Despite an undertaking to trim the offending tree, your neighbour fails to do so. You then discover that a portion of the neighbour’s driveway actually encroaches on your driveway which is registered as your exclusive use area. This scenario played out in the high court, where AC was the neighbour affected by the bougainvillea tree causing the nuisance. His neighbour SR, though initially agreeing to trim the offending branches, failed to do so. AC then instructed a land surveyor to survey the extent of the driveway to which he had the right of exclusive use and discovered that his neighbour SR had encroached a portion of his driveway and a portion of the carport. He then proceeded with a court application for the demolition of the encroachment. When AC purchased his unit about 2 years before the matter went to court, the seller informed him that the boundary lines on his property were incorrect. However AC did not take this issue up with the Body Corporate or with the seller before making his purchase. According to AC, the costs to redo the driveway was quoted in excess of R230 000,00. The court would be entitled to order the removal of the encroachment, however in the area of neighbour law, the court has a wide discretion to make an award which is equitable, taking into account factors such as reasonableness and fairness. In this case the court said that the removal of encroachment would have huge financial implications for the neighbour, and it looked at the alternative namely compensation as opposed to demolition. The court looked at what it termed “the disproportionality or otherwise between the removal of the encroachment as against the damage or inconvenience suffered by the aggrieved landowner”. Among the factors which the court considered in this case included the following: SR had undisturbed possession of the property for a period in excess of six years;  he received permission from the body corporate to erect the carport and gate; AC was aware of the encroachment as the previous owner informed him of this at the time of him purchasing the property in October 2018 and did nothing about this; the application for demolition only came about following an altercation between the parties. Given the circumstances of this particular matter, it is just and equitable as well as reasonable for the applicant to be compensated for his loss and the respondent has tendered compensation”. According to AC’s expert’s valuation report, the market value on the encroachment was placed at R21,400.00, whilst the other neighbour expert assessed it at R11 500.00. The court said that AC’s “insistence on removing the encroachment by demolition and having to reinstate the driveway was opportunistic and the cost of demolition was substantial. The court accepted valuation of SR’s expert and ordered the sum of R11 500,00 to be paid for the encroachment.

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